Memorandum submitted by the Joint Council
for the Welfare of Immigrants
ABOUT THE
JOINT COUNCIL
FOR THE
WELFARE OF
IMMIGRANTS
The Joint Council for the Welfare of Immigrants
is an independent, voluntary organisation working in the field
of immigration, asylum and nationality law and policy. Established
in 1967, JCWI provides legally aided immigration advice to migrants
and actively lobbies and campaigns for changes in immigration
and asylum law and practice. It's mission is to eliminate discrimination
in this sphere and to promote the rights of migrants within a
human rights framework.
INTRODUCTION
Whilst we recognise that is an inherent feature
of the state to make entry and admissions decisions, its powers
to formulate immigration laws and policies are not, nor should
be, completely unrestrained. The Government has assumed a number
of legally binding commitments through international human rights
instruments and municipal law. It has also committed itself through
the United Nations to achieving the Millenium Development Goals
(for which see below). It is therefore essential that immigration
laws reflect these obligations. Given also that the effect of
immigration laws is to ration economic and educational opportunities
which are considered by international human rights standards to
be central to human dignity,[65]
it is essential in our view that these opportunities are distributed
across the globe in an equitable manner. Such an approach need
not conflict with the national interest.
Our submissions in this enquiry critique some key
elements of the Points Based System (PBS) by reference to the
above considerations. Due to word constraints we are unable to
offer a detailed analysis of the scheme as a whole and only focus
on some new key initiatives. We proceed in the following way.
In section one we summarise the key commitments and obligations
that the Government has assumed by reference to statute, human
rights instruments and other relevant texts. In section two we
address, on a tier by tier basis, some key issues the PBS raises
by reference to the first section. The key concern flowing throughout
the submission is about the "discriminatory" impacts
of the maintenance requirements. In part three we highlight inadequacies
with the new system of administrative review, and in part four
we express our concern about the absence of welfare and other
social rights for non EU migrant workers.
SECTION 1: KEY
HUMAN RIGHTS/MUNICIPAL
OBLIGATIONS
Statutory duties to promote equality.
1.1.1 Section 71 (1) of the Race Relations Act
1976 imposes an obligation on the UK Border Agency to have "due
regard" to the need to eliminate unlawful racial discrimination
and to promote good race relations between different racial groups.[66]
Section 76(A) of the Sex Discrimination Act requires that the
UK Border Agency has due regard to the need amongst other things
to: a. eliminate unlawful discrimination and b. promote equality
of opportunity between men and women.[67]
Section 49(A) of the Disability Discrimination Act 1995 requires
the UK Border Agency to have due regard amongst other things to
the need to a. eliminate unlawful discrimination under the Act
and b. promote equality of opportunity between disabled persons
and others and promote positive attitudes towards them and encourage
their participation in public life.[68]
1.1.2 All of the above extend to cases of indirect
discrimination and are therefore broadly applicable in circumstances
where neutral conditions apply but have a disparate impacts.[69]
The Home Office and UK Border Agency have, as they are statutorily
required to do, published details of their Equality Scheme together
with the means they intend to employ to comply with the above
obligations in the immigration context. It is the policy of the
UK Border Agency as detailed in its Race, Disability and Gender
Equality Scheme at paragraph 45 to undertake equality impact assessments
in relation to "what is proposed" providing this constitutes
a new policy or a significant change to existing policies.
Human rights obligations:
1.2.1 The right to freedom from discrimination
Article 14 ECHR prohibits both direct and indirect
discrimination on grounds of sex, race, language, colour or social
or national origin or "other status" in relation to
the enjoyment of rights falling within the ambit of a Convention
right. Article 2 of the 1979 Convention for the Elimination of
All Forms of Discrimination Against Women (CEDAW) imposes a duty
on the Government to eliminate discrimination and a more exacting
obligation to embody the principle of equality between men and
women. The UN Convention on the Rights of People with Disabilities
(CRPD) which the UK is due to ratify (by December 2008) in the
spirit of equality specifically requires states to "prohibit
discrimination on the basis of disability with regards to all
matters concerning employment".[70]
1.2.2 The right to respect for private and family
life
Article 8 ECHR protects and requires respect
for private and family life which will often be in play in cases
of removal and entry. Article 8 also requires that any interference
with private and family life must be "in accordance with
law" ie it must be sufficiently foreseeable for any interference
with the right to be considered lawful.
1.2.3 The right to peaceful enjoyment of possessions
Article 1 of Protocol 1 of the ECHR entitles
legal persons to the "peaceful enjoyment of their possession".
Those possessions may only be deprived if it is in the public
interest and even then, deprivation must be subject to the conditions
provided for by law and by the general principles of international
law. States can also enforce laws they consider necessary to control
the use of property in accordance with the general interest or
to secure the payment of taxes or other contributions or penalties,
though such action must be proportionate to the general interest
sought to be promoted in order to be considered lawful.
1.2.4 The UK's obligations in relation to smuggling
and trafficking
Article 5 of the Council of Europe Trafficking
Convention creates an obligation on the UK to prevent trafficking.
Article 5(4) specifically requires that each party shall "take
appropriate measures, as may be necessary, to enable migration
to take place legally ...".
In relation to smuggling, Article 15 (3) of the UN
Protocol Against the Smuggling of Migrants by Land, Sea and Air
2000 requires the UK to "promote or strengthen cooperation"
at the international level "taking into account the socio
economic realities of migration and paying special attention to
economically and socially depressed areas, in order to combat
the root socio economic causes of the smuggling of migrants, such
a poverty and underdevelopment".
1.2.5 Obligations on the state to provide economic
and social rights
Article 9 of the International Covenant on Economic,
Social and Cultural Rights (1966) (ICESCR) requires states to
recognise the right of everyone to social security, Article 7
recognises the right of everyone to the enjoyment of just and
favourable conditions of work including the right to fair wages
and "equal remuneration for work of equal value without distinction
of any kind". Article 2(1) requires the state to take steps
to "the maximum of its available resources, with a view to
achieving progressively the full realisation of rights [within
the Convention] without discrimination".
The UK's commitment to eliminate global poverty
and the Millenium Development Goals
1.3.1 The Millenium Development Goals are eight international
development goals that reflect the commitment of the international
community to human rights principles of human dignity and non
discrimination. 189 UN member states including the UK have agreed
to achieve the goals by 2015. These include a commitment to eradicate
extreme poverty and hunger, the promotion of gender equality,
the development of a global partnership for development and the
reduction of child mortality.[71]
SECTION 2: TIER
BY TIER
ANALYSIS OF
THE POINTS
BASED SCHEME
TIER 1 GENERAL:
MAINTENANCE REQUIREMENTS
Racial impacts and impacts on non OECD countries
2.1.1 We note that the new maintenance requirements
are set at extremely exacting levels.[72]
Unlike the income requirements, they are not subject to any kind
of multiplier capable of taking into account relevant currency/other
salary differences between countries. By way of example, an average
sized Indian family[73]
consisting of one main applicant, a spouse and three children
would, in order to secure entry clearance, be required in total
to possess £10,600 in order to apply for entry clearance.[74]
This equals approximately 907,037 Indian rupees. It would take
an Indian professor or an accountant approximately two years to
earn the equivalent, and infinitely longer to save up for up for
it.[75]
The picture is yet more stark in the case of an applicant from
a an underdeveloped country such as Bangladesh. In this case,
the same migrant would require approximately 1,310,150 Bangladeshi
takas in order to be eligible for entry clearance. This would
take an accountant/professor devoting his entire income to this
approximately 18.7 years to earn.[76]
By comparison, a US professor could on average expect to earn
in the region of $98,000 and could expect to earn this in under
a quarter of a year.
2.1.2 Given that the Highly Skilled Migrant Programme
now subsumed into this tier has (i) historically provided a route
of entry to nationals disproportionately drawn from non OECD and
non white countries with over 50% of those applications emanating
from India,[77]
(ii) currency in non OECD countries is weaker and average salaries
are lower and (iii) Black Africans and certain South Asian groups
earn up to 27% less than white men in the British labour market[78]
it is highly likely that the imposition of these requirements
both prior to, and after entry will disproportionately impact
on the ability of non OECD, overwhelmingly non white nationals
to enter and remain in the UK in order to work within this tier.
2.1.3 We note that the tier 1 equality impact assessment
fails to give any consideration to the impact of a key aspect
of tier one in the form of the imposition of these specific maintenance
requirements on different races/ethnic groups. It therefore fails
to deal with the question of whether it is likely to generate
unlawful discrimination or/and promote good relations. Given that
it is certainly arguable that the requirements may well generate
indirect discrimination in a legal sense and harm race relations
(if certain groups feel that other groups are receiving preferential
treatment) we believe that the requirements imposed by Section
71 of the Race Relations Act 1976 together with the UK Borders
Agency policy have not been fulfilled in formulating policy on
the maintenance requirements.
Gender based impacts
2.1.4 We note that women have historically accounted
for approximately ¼ of the total number of approved applications
as primary applicants under the HSMP.[79]
It seems likely that the new maintenance requirements will reduce
this for several reasons. Firstly and most importantly the disparity
in male and female incomes throughout the globe which lies in
the region of 16%[80]
means that women are far less likely to have accrued sufficient
savings to fulfil these requirements In the case India for example
where over half the applicants under their tier are drawn from,
the pay gap is believed to lie in the region of 40% in rural India
and 25% in urban India[81]
In Bangladesh it is believed to lie in the region of 21.3%.[82]
Secondly, given that statistics show that women have historically
entered the Highly Skilled Migrants as dependants of primary male
applicants, it seems highly likely that the effect of the maintenance
requirements will be to significantly push up the costs of entering
the UK. This is therefore likely to result in reduced entry by
dependants and therefore women due to the additional expense their
presence would entail.
2.1.5 We note that the tier 1 of equality impact
assessment undertaken by the UK Borders Agency does not consider
the impact of the new maintenance requirements upon female applicants.
As such there is no consideration of whether the maintenance requirement
will in fact generate unlawful discrimination, or is consistent
with the more exacting duty to have regard to the need to promote
equality between the sexes. Consequently, it is arguably the case
that the UK Borders Agency has failed to comply with Section 76(a)
of the Sex Discrimination Act together with the requirements of
its own equality scheme.
The disabled
2.1.6 In relation to the disabled, statistics
in the UK reveal that they are far more likely to live in poverty;
far less likely to have savings;[83]
and often face additional costs because of their disability due
to adaptations, aids etc. Extrapolating from this information,
it also seems highly likely that maintenance requirements seem
likely to disproportionately affect their ability to enter and
remain in the UK for work purposes. Again, the failure to give
any consideration at all to the issues identified in section 49(a)
of the Disability Discrimination Act 1995 arguably renders the
policy process inconsistent with these obligations, and the UK
Borders Agency's own policy.
CONCLUSION ON
MAINTENANCE REQUIREMENTS
2.1.7 Given that the policy process leading
up the establishment of the maintenance requirements in tier 1
of the Immigration Rules is procedurally and substantively flawed,
the maintenance requirements are arguably inconsistent with the
relevant statutory equality duties identified above together with
the UK Borders Agency's and are therefore arguably unlawful.[84]
LANGUAGE TESTING
AND THE
SYSTEM OF
DESIGNATION
2.1.8 We are confused and concerned about the
language requirements, and in particular by the designation of
certain countries as "English speaking" for both tiers
and 1and 2.[85]
What is noteworthy is that countries such as Nigeria whose entire
schooling system has been constructed around the British educational
model, and who claim English as their official language do not
appear on the list of designated countries (exempt from the English
testing). By contrast, other comparable countries in which various
languages are spoken such as Canada are deemed English speaking.
2.1.9 Whilst the Equality Impact assessments for
tiers 1 and 2 undertaken by the UK Borders Agency addresses the
requirement to speak English generally, it at no point addresses
its particular system of designation and the impact of this on
different racial groups and nationalities. To this extent it is
arguably not consistent with the relevant statutory duties. Again
given that the maintenance requirement represents a significant
plank of the new requirements, for the reasons identified above
this arguably renders the particular designation unlawful for
want of compliance with the general statutory equality duties.
2.1.10 Both the maintenance and language requirements
also raise concerns from the perspective of compliance with Article
14 ECHR in conjunction with 8[86]
given that removal from the territory, but also entry for work
purposes may fall within the ambit of Article 8 ECHR.[87]
The maintenance requirements are also arguably inconsistent with
Article 2 of CEDAW and Article 27 of CRPD. On the question of
justification it is worth noting that:
(a) migrants are already subject to a public
funds restriction precluding access to the welfare state;
(b) as evidenced by the rates of welfare
benefits, the British Government accept a far lower level of subsistence
for the settled population than is now deemed appropriate for
migrants (and indeed for tier 2 applicants for which see below);
and
(c) there is no evidence that migrants have
higher expenditure patterns that non migrants.[88]
TIER 2: THE
SYSTEM OF
SPONSORSHIP
Incompatibility with Article 7 of the International
Covenant on Economic, Social and Cultural Rights 1966
2.2.1 Our fundamental objection to the system
of sponsorship in the context of tier 2 is about its impact on
the salaries of migrant workers. We understand from discussions
with trade unions such as UNISON that it is not currently unusual
for employers to attempt to seek to pass of the relatively small
costs associated with work permits to migrant workers. This is
done through making deductions from their salaries or levying
other "related charges" against them. The sponsorship
scheme entails for employers a vast increase in expenditure should
they chose to employ migrant workers. Employers will therefore
incur expenditure on ensuring that; they have appropriate "management
systems" in place in order to comply with the licensing arrangements
and that they have the legal assistance and training they require
in order to secure licences and comply with their reporting obligations
applications. They will also be required to pay fees of £300.00
or £1000.00 for the license depending on the size of the
business, and pay for the renewal of their fees every four years,
as well as meet the costs of each certificate of sponsorship.
The substantial increase in expenditure by employers is likely
to lead to higher deductions from the salaries of migrant workers
on a more frequent basis. We do not believe that state sanctioning
of this kind of practice is consistent with the duties outlined
above in Article 7 of ICSECR.
Undermining the ability of migrants to claim their
legitimate labour/human rights
2.2.2 We note from our discussions with trade unions
that it is presently not uncommon for employers to threaten to
revoke work permits or to refuse to complete extension forms in
cases where migrants seek to claim and exercise labour rights
(statutory/contractual/other human rights) to which they are lawfully
entitled. The London Discrimination Unit told us of a recent example
where two female employees at the same business had tolerated
sexual harassment from their employee for sustained periods of
time due to their fear of the ramifications (ie employer activity
resulting in their removal from the country) that would flow from
reporting, and taking legal action against them.
2.2.3 We note that under the scheme, the employer
will continue to play a significant role in the migrant workers
applications through the system of certificates of sponsorship.
This role will be fortified through the introduction of reporting
requirements which require by way of example the reporting of
"suspicions that the migrant is breaching [their]conditions
of his or her leave".[89]
This imbalance in power, and the transformation of the role of
the employer into a tool for immigration control significantly
increases the scope, and possibility for abusive employment practices
of the kind referred to above. The overall effect of this in practical
terms will be to render contractual, statutory, and human/labour
rights migrants enjoy illusory.
Potential inconsistency with Article 1, Protocol
1 (ECHR)
2.2.4 Companies are capable of possessing "human
rights" as they may be considered "legal persons".[90]
Damage to a business emanating from the inability to secure a
license and appoint/retain appropriate employees, and the attendant
loss of goodwill that comes with this (as opposed to a loss of
future earnings) can constitute a possessions under Article 1
of Protocol 1 ECHR.[91]
It is notable that the guidance regulating the grant, and withdrawal
of sponsorship applications contained within the "Guidance
for sponsor applications: Tier 2, Tier 4 and Tier 5 of the points
based system" is extremely vague allowing applications to
be refused for example "if there is anything in the sponsor
body's history or that of the people managing or controlling it,
that suggests that it could be a threat to immigration control
or that it would be unable or unwilling to carry out its duties".[92]
Other examples appear in the footnotes below.[93]
These requirements are not sufficiently clear for employers to
foresee in advance the consequences of their actions for the purposes
of acquiring/retaining sponsorship licenses. In our view they
are therefore insufficient to satisfy the requirement that they
are "provided for by law". As to the second limb of
the requirement, a court would approach the question by balancing
the interests of the individual with those of the general interest
(ie in this case immigration control/prevention of unlawful working/)
in order to ascertain whether such action would be necessary.
TIER 2: GENERAL
CRITERIA MAINTENANCE
REQUIREMENTS
2.2.5 Work permit applications have historically
overwhelmingly emanated from male applicants[94]
drawn mainly from India but also from Pakistan, Philippines and
the US and Canada[95]
Given the disparities in relative incomes and currencies across
the globe, and given average incomes within the British labour
market which vary according to race, possession of disability,
and sex,[96]
the new maintenance requirements which, as with tier 1, are not
subject to any multiplier, are problematic, and can be expected
to impact most acutely on nationals from non OECD countries, women
and the disabled for the reasons identified above.
2.2.6 In terms of the equality impact assessment,
we note that there is no consideration of the gendered/disability
based implications that flow from the maintenance requirements.
Whilst the impact of the maintenance requirements on different
races is something that has been given consideration, this is
far from adequate, as the assessment fails to make elementary
findings such as whether or not it is accepted that there would
be adverse impacts on racial/ethnic groups, or not. The cumulative
effect of these shortcomings is in our view to render the assessment
flawed. Arguably, given the total absence of consideration of
the issues required by SDA and DDA, and the inadequate nature
of the assessment in relation to the RRA, this may well mean that
the imposition of the maintenance requirements imposed under tier
2 is unlawful. For the reasons identified above, the maintenance
requirements also raise identical issue in so far Article 2 of
CEDAW and Article 14 and 8 ECHR go.
TIER 2 AND
SHORTAGE OCCUPATIONS
2.2.7 In terms of the methodology employed by
the Migration Advisory Committee for determining shortage areas,
we note that this again is altogether absent from the tier 2 equality
impact assessment. Given the wide variations in average salaries
by reference to race and sex, MAC's approach to determining questions
of "skill", and "shortage" by reference amongst
other factors to salary seem likely to lead to discrimination
against certain ethnic minorities/ women[97]
and disabled migrants particularly when viewed in conjunction
with tier 3.[98]
This total lack of consideration of MAC's valuation methodology
within the equality impact assessment on different races, sexes
and the disabled also arguably means that the general statutory
equality duties detailed above have not been fulfilled.
TIER 3
2.3.1 Whilst it is questionable as to whether
in the context, of either tiers 2 or 3, the Migration Advisory
Committee, or indeed any Government or other body can accurately
or efficiently predict the needs of the labour market at any given
point in time[99]
our primary concern with tier 3 is that it has been formulated
without any reference to the MDG at all, or the views of the Government's
own Department of International Development.[100]
It is notable that the Department for International Development
recognise that migration and development are interlinked. Specifically
writing about the MDG it is notable that they "support increased
opportunities for both skilled and low skilled workers ...".[101]
as a means of achieving the MDG. Indeed their views are worth
quoting in greater detail:
"For developing countries with an abundance
of poorly educated people internal and international migration
into low skilled jobs could bring about huge poverty-reduction
and development benefits ...[102]
through "helping individuals to increase their income, learn
new skills, improve their social status, build up assets and improve
their quality of life. For communities and developing countries,
emigration can relieve labour market and political pressures;
result in money being sent home (remittances); increase trade
and financial investment from abroad; and lead to support from
migrant communities (disapora) such as technology transfer, tourism
and charitable activities".[103]
2.3.2 Given their expert view on this matter,
we believe that the decision to end low skilled migration from
outside of the EU[104]
positively undermines the UK's commitment to the MDG.
2.3.3 We also note, that in formulating tier
3 or indeed any of the tiers there is no reference to the commitment
to end smuggling and trafficking, nor the duties contained within
Article 5 of the Trafficking Convention and Article 15(3) of Smuggling
Protocol. It is uncontroversial that migrants who are mainly "low
skilled" often revert to expensive and illegal means of attempting
to secure entry to states through smuggling due amongst other
factors to the absence of legal avenues open to them. The lack
of viable immigration routes also plays a role in making at least
some migrants vulnerable to trafficking. Political commitment
to the abolition of these practices and compliance with the text
and spirit of the above requires that tier 3 is modified to afford
some access to unskilled workers from outside of the EU.
TIER 4: MAINTENANCE
REQUIREMENTS
2.4.1 Our primary concern with tier 4 relates
to the level at which the maintenance requirements are set. Students
are required to establish the availability of £800.00 per
month for each month of the course up to a maximum of 12 months,
and £533.00 for each dependant, in addition to the costs
of their course[105]
Foreign students will therefore routinely be required to show
that they have £9,600.00 plus the entry clearance and course
fee.[106]
2.4.2 The imposition of these maintenance requirements
is seemingly inconsistent with the Prime Ministers Initiative
which has actively sought to attract international students to
the UK in recognition of the financial and other contributions
they make. Such measures seem ultimately destined to divert students
to alternative destinations offering more cost effective packages.
2.4.2 Our chief concern with tier 4 however
with its potential to disproportionately affect the ability of
women, nationals from non OECD states (who tend to be overwhelmingly
non white nationals), other poorer members of society, and the
disabled to enter for educational purposes. In our view the provisions
risk generating inconsistency with Articles 14 in conjunction
with Article 2 of the First Protocol of ECHR. The measures are
arguably not justifiable to the aim of seeking to ensure that
students are able to maintain themselves given that prospective
earnings cannot[107]
be taken into account, given that the maximum available Government
funds available to domiciled students is considerably less £6,475
totalling £539.00 per month and given that there is little
difference between the expenditure patterns of national and non
national students, and given that students are subject to a public
funds restriction in any event.
SPONSORSHIP
2.4.3 We are also concerned about the sponsorship
system which transforms educational institutions into enforcers
of immigration control with reporting requirements requiring them
to report absences by students, late submission of assessments.
The decision to award or discontinue licences engages and may
lead to breaches of Article 1 of Protocol 1(see above) and the
mode of implementation may engage and in certain cases breach
Article 8 ECHR.
TIER 5
2.5.1 We are extremely concerned by the shape
of the youth mobility scheme which subsumes the Working Holiday
Makers Scheme. In particular we are concerned by:
(i) Its automatic closure to all states save
for Australia, Canada, New Zealand and Japan (the Working Holiday
Makers scheme has historically been open to all Commonwealth citizens).
(ii) The absolute prohibition on bringing dependant
children to the UK (presently children under five may enter the
UK under the Working Holiday Makers scheme).
(iii) The requirement that applicants fulfil
the maintenance requirement of £1,600.00.
2.5.2 The effect of (i) will be to further limit
the temporary migration possibilities for non OECD nationals (overwhelmingly
non white nationals) to enter the UK in a way that in our view
is inconsistent with the MDG. Additionally (ii) can be expected
to deter women who overwhelmingly assume responsibility for child
care from entering the UK under this capacity. Finally (iii) could
lead to indirect discrimination against women and disabled migrants
given their lower average incomes, with (i) and (ii) operating
in such a way that may be contrary to the obligations under Article
2 of the 1979 Convention on the Elimination of All Forms of Discrimination
Against Women (for which see above).
2.5.3 In so far as the race equality impact
assessment goes for the youth mobility scheme we note the conclusion
there is no race discrimination. We also note however that the
"low risk formula", the level at which the maximum permitted
YMS risk is set at, and the scoring for particular countries is
not disclosed[108]
nor specifically given any consideration what so ever in the race
equality assessment. Given that these are new criteria which form
a significant part of the tiers requirement this raises the possibility
that the race equality impact assessment has failed to take into
account the relevant considerations necessary for the purpose
of complying with its policy, and the relevant statutory duties.
PART 3: CHALLENGING
IMMIGRATION DECISIONS
UNDER THE
POINTS BASED
SYSTEM
3.1.1 It must be recalled that immigration decisions
concerning entry for work purposes touch upon fundamental rights
(ie education and work). It is therefore extremely important that
there exists a sufficiently rigorous and impartial mechanism to
check the exercise of this power. We believe that the system of
administrative review is an inadequate tool to perform this task
for the following reasons:
(a) Administrative review will be undertaken
by the same body responsible for making the decision. This substantially
compromises its impartiality;
(b) The scope of administrative review is limited
and will not cover situations where there is a fault with underlying
processes, policies or the exercise of discretion under particular
policies; and
(c) Administrative review looks only at the
material that was submitted with the application save for cases
involving an allegation of deception.[109]
Innocent oversight cannot be made good by a commonsense approach
that permits the submission of fresh evidence. Whilst therefore
the theoretical right to challenge decisions on grounds of factual
error/misapplication of the rules exists, it is seriously constrained
given that experience shows that in most cases the right decision
is promoted through the production of further evidence, the need
for which is often not appreciated until notification of an adverse
decision clarifies quite what material is perceived as adequate
by the entry clearance officer. Administrative review is not a
process which leads to the correct decision about a migrant's
future: it simply checks whether the original application accorded
with the officer's expectations.
3.1.2 Whilst judicial review will continue to
be available to migrants, this is an inadequate replacement for
a full statutory appeal. It is more limited in scope than an appeal,
being concerned solely with the reasonableness and fairness of
a decision (for example, a judge cannot intervene even where they
are quite sure a decision is wrong, unless they can say the decision
to refuse was irrational), is unable to consider evidence that
was not before the administrative decision maker, provides an
inadequate remedy given that it usually leads to reconsideration
of an original decision rather than overall resolution of the
issue in question, and on average takes far longer than an appeal
process. This presents practical problems as a successful outcome
may still mean that the migrant's sponsorship certificate is withdrawn
given that the actions of an employer will ultimately be guided
by their organisational requirements rather than the pace of the
proceedings.
3.1.3 Whilst we note that entry clearance decisions
which do not attract a right of appeal are to fall within the
remit of the Entry Clearance Monitor, this is not a sufficient
replacement for a full right of appeal, as the monitor is not
able to investigate individual complaints or provide an appropriate
remedy to applicants.
3.1.4 For the shortcomings in the internal appeals
process envisaged by Part 10 of the Draft (partial) Immigration
and Citizenship Bill the Committee (DPICB) the Committee should
refer to JCWI's memorandum of evidence. By way of addition, we
are concerned by the limitations imposed on the consideration
of evidence before the Asylum and Immigration Tribunal in Points
Based System cases which replicate existing provisions by prohibiting
consideration of material that was not submitted at the time of
the original application for the reasons identified above.[110]
SECTION FOUR:
MIGRANTS AND
SOCIAL AND
ECONOMIC RIGHTS
UNDER THE
POINTS BASED
SYSTEM
4.1.1 Economic migrants:
(a) bring economic benefits to the UK and
contribute to public finances;
(b) are more vulnerable to exploitation from
employers for a variety of reasons including their lack of secure
status, lack of cultural knowledge, lack of support structures
and the existence of structural discrimination; and
(c) are, when subject to denial of their
rights less likely to pass on the benefits of migration in their
communities of origin.[111]
4.1.2 For these reasons, and in order to comply
with the UK's obligation referred to above to in Article 2 (1)
of ICESCR we believe that any system of managed migration must
be accompanied by a significant strengthening of employment law
protection more generally, and an expansion in the availability
of social welfare entitlements rather than a weakening of those
entitlements as presently envisaged by the Government.[112]
A useful way to approach this issue given the economic implications
involved would be to analyse the extent to which the UK complies
with standards in the 1990 Migrant Workers Convention which is
the key human rights instrument in this area, or at the very minimum
the 1977 European Convention on the Legal Status of Migrant Workers
with a view to signing, and ratifying them.[113]
March 2009
65 For the Right to Work see Article 23 of the 1948
Universal Declaration of Human Rights, Article 6 of the 1966 International
Covenant on Economic, Social and Cultural Rights (ICESCR). For
the right to education see Articles 26 of the Universal Declaration
on Human Rights, Article 13 of the ICESCR. Back
66
Under Section 19B of the Race Relations Act it is unlawful for
a public authority to carry out its functions to do any act which
constitutes discrimination. The definition of discrimination is
contained in Section 1 of RRA 76 though it should be noted that
by Section 19C that this duty does not apply to any enactment
or Order made by the Minister of the Crown under enactment ie
the Immigration Rules. Further by section 19D there are further
exemptions that apply when "relevant authorisations"
are made. Back
67
Under section 52(4)(d) it is not unlawful for the Secretary of
State to discriminate when making the Immigration rules to discriminate
on grounds of sex. Discrimination is defined in section 1 of the
Sex Discrimination Act 1975. Back
68
Under Section 21 of DDA it is unlawful for a public authority
to discriminate against disabled persons in carrying out their
functions. The definition of discrimination is found in By section
21C(2)(b)(i) the duty does not apply to instruments made by a
minister under the Crown. Back
69
Millenium Declaration agreed at the UN Millenium Summit, September
2000. Back
70
Article 27. Back
71
Millenium Declaration agreed at the UN Millenium Summit, September
2000. Back
72
Appendix C2(a) HC 395 as amended-the requirement for an out of
country applicant is £2800.00 for the main applicant; Appendix
e(a) and £1,600.00 per dependant and Appendix C2(b) £800.00
for an in country applicant and £533.00 for an in country
applicant only when they have been in the country for 12 months. Back
73
UNICEF estimates that the average is 2.9 children per woman. Back
74
Inclusive of entry clearance fees. Back
75
See www.payscale.com/reserach/IN/Country=India /Salary Back
76
Bangladeshi Bureau of Statistics at http://www.bbs.gov.bd/dataindex/key_wage07.pdf) Back
77
J Salt International Migration and the United Kingdom report of
the UK, SOPEMI correspondent to the OECD, 2007 at p 87. Back
78
See summary of K Clark and S Drinkwater, "Ethnic minorities
in the labour market: dynamics and diversity", Joseph Rowntree
Foundation, p 3 available at www.jrf.org.uk Back
79
UK Borders Agency, Points Based System (tier 1) Impact Assessment,
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/managingourborders/pbsdocs/). Back
80
The Global Gender Pay Gap, International Trade Union Confederation,
February 2008, p 7. Back
81
See ILO report 2008 http://www.financialexpress.com/news/Indian-men-get-fatter-pay-packet-than-women-ILO/325054/ Back
82
See Lower Wages for Bangladeshi Women raises concerns about discrimination:
ILO study finds in The New Nation http://nation.ittefaq.com/issues/2008/09/03/news0541.htm Back
83
49% of the disabled in contrast to 12% of the general population
having no savings at all and 30% as opposed to 60% live below
the poverty line, see G Prackar Disability Poverty in the UK 2008,
Leonard Cheshire Disability, p.5-8 available at www.lcDisability.org Back
84
See the approach of the Court of Appeal in R (on the application
of C) v Secretary of State for Justice where the amendment Secure
Training Centre (Amendment Rules) made by the Parliamentary Under
Secretary of State were quashed. See also Kruse v Johnson [1898]
2 QB 91 at p 99-100). Back
85
Annexe B 2(b) HC 395 as amended. Back
86
The European Court of Human Rights has recognised that Article
14 prohibits both direct and indirect discrimination, on this
see Thlimmenos v Greece (2000) 31 EHRR 411 also applies in cases
of indirect discrimination. Back
87
In this respect it is worth noting that Article 6 of the International
Covenant on Social and Cultural Rights 1966 to which the UK is
a state party which acknowledges the centrality of work to human
dignity and recognises the right to work, and the need for state
parties to take appropriate steps to achieve the full realisation
of this right. Article 1 of the of the Revised European Social
Charter (1996) also recognises the right to work, see Sidabras
and Dziautus v Lithuania Applications nos. 55480/00 and 59330/00
for the approach of the European Court of Human Rights to work
and the use of international standards such as the European Social
Charter. Back
88
For example a young person aged 16 to 24 could expect to receive
£47.95 per week and those 25 to 59-£60.50 per week Income
Support. Back
89
Para 327(f) Guidance for Sponsor applications: Tier 2, tier 4
and tier 5 of the points based system. Back
90
Pye (Oxford) Ltd v United Kingdom App No: 44302/02. Back
91
See; Wendenburg v Germany (2003) 36 EHRR CD 154, 169. In Tre Traktrer
AB v Sweden (1989) 13 EHRR 309 and Ian Edgar (Liverpool) Ltd v
United Kingdom Reports of Judgments and Decisions 2000-I, [2000]
ECHR 700, p 46. Back
92
Para 14. Back
93
Para 84 explains how applications will be deal with it. It indicates
that when considering applications decision makers will ask three
questions. These include at 11. Is the applicant "dependable
and reliable?" In order to judge this, we will look at the
history and background of the organisation, its key personnel
and of the people who control it. Any history of dishonest conduct
or immigration crime will be viewed seriously and may lead to
us refusing the application. iii. Is the applicant capable of
carrying out its duties as a sponsor? We will judge this by looking
at the organisation's processes and human resource practices to
ensure that it will be able to carry out its duties. If we have
significant doubts we may award a B-rating or, in more serious
cases, refuse the application.
Para 107 states "To meet the suitability criteria an organisation
must show that: (i) the sponsor has effective human resource systems
in place (more information is on our website at http://www.ukba.homeoffice.gov.uk/employers/points/sponsorduties/assessment/);
(ii) the sponsor has not been given a civil penalty for immigration
offences; (iii) the authorising officer, level 1 user and key
contact does not have any criminal convictions in their name for
any of the offences, listed in Appendix B (convictions which are
spent under the Rehabilitation of Offenders Act 1974, will not
be taken into account). Any other unspent convictions could also
lead to an application being refused; and (iv) we do not have
any evidence of previous non compliance." See paras 396 under
"Circumstances in which we will award a B rating" "We
will award a B-rating if: (a) the prospective sponsor or another
relevant person has been issued with one of the `offence' listed
in Appendix C within the five years ending on the date of the
application, unless: (i) we withdrew that penalty or it was cancelled
on appeal; or (ii) the sponsor or another relevant person has
been issued with a maximum civil penalty within the previous six
months, in which case we will refuse the application instead;
(b) the applicant is an existing sponsor applying to renew its
license and is already B-rated (unless we are satisfied that it
has successfully completed its plan). Para 397 Circumstances in
which we may award a B rating states "We may award a B rating
if, the prospective sponsor or another relevant person has a conviction
for serious offences to do with how it runs its business and this
makes us doubt its suitability as a sponsor (for example a conviction
under the National Minimum Wage Act or for benefit fraud)...". Back
94
See UK Borders Agency Impact Assessment at p 12. 68% of all approved
applications came from men in 2007 and 64% the previous year. Back
95
J Salt International Migration and the United Kingdom report of
the UK SOPEMI correspondent to the OECD, 2007 at p 75. Back
96
The Equality Impact Assessment at p 12 refers to the average earnings
of women in full time work as £11.67 and that of men as £14.08
and 42%% of women working part time in contrast to 9% of men. Back
97
Professor Kofman, extract from draft report for the Equality and
Human Rights Commission. Back
98
See for example the position and scoring of care assistants, p
243 of Skilled Shortage The recommended shortageoccupation lists
for the UK and Scotland by the Migration Advisory Committee, September
2008. Back
99
Philippe Legrain and Ian Birrell for example. Back
100
See p 29-31 A Points-Based System Making Migration Work for Britain,
March 2006, CM. Back
101
Moving out of Poverty-making migration work better for poor people,
Department for International Development, March 2007 at p 28. Back
102
Moving out of Poverty-making migration work better for poor people,
Department for International Development, March 2007 at p 27. Back
103
Moving out of Poverty-making migration work better for poor people,
Department for International Development, March 2007 at p 2. For
further reading on the potentially positive effects of low skilled
migration for developing countries are very well documented (see
also P Legrain, Immigrants: Your Country Needs Them, little Brown
2007 ch 3). Back
104
See A Points Based System Making Migration Work for Britain, March
2006, CM 6741, p 29-31. Back
105
Border Agency statement of intent, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/managingourborders/pbsdocs/statementofintent/studentsunderthepointsbasd.pdf?view=Binary,
para 31-32. Back
106
Course fees of course differ but it should be remembered that
for example a Masters course fees for international students range
from £2,100.00 to £28,000. Back
107
As is presently the case. Back
108
Statement of Intent for tier 5. p 13. Back
109
See Polly Curtis, Academics balk at spying on students to nail
migrant scams, Guardian 10.11.08 which reports that universities
are being asked to set up "surveillance units" in order
to comply with sponsorship requirements. Back
110
See Section 85A(4) of Nationality, Immigration and Asylum Act
2002 which is largely replicated in clause 182(4) of the DPICB. Back
111
Moving out of Poverty-making migration work better for poor people,
Department for International Development, March 2007 at p 30. Back
112
Making Change Stick. An Introduction to the Immigration and Citizenship
Bill, UK Borders Agency, at p 8. Back
113
It is worth noting that The House of Lords Select Committee on
European Union recommend, the UK should also reconsider its decision
to opt out of the 203/109/EC Long Term Residents Directive which
would provide non EU migrant workers with certain social rights
(para 105 House of Lords Select Committee on European Union, Fourteenth
Report).See S Mackay and A Rivers "Migrant Workers and employment
law" in Ryan ed. Labour Migration and Employment Rights (London,
The Institute of Employment Rights, 2005) at chapter 5. Back
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